New York State Court of Claims

New York State Court of Claims

PERDOMO v. THE STATE OF NEW YORK, #2006-032-043, Claim No. N/A, Motion No. M-71128


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Rodrigo Perdomo Also Known as Jorge Lopez, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
May 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for leave to file a late claim alleging negligence and medical malpractice as a result of an injury and treatment he received as an inmate at Adirondack Correctional Facility. Defendant opposes this relief arguing, inter alia, claimant failed to establish the appearance of merit.

Claimant's application contains a notice of motion, notice of intention and an affidavit of service. [1] Claimant fails, however, to submit a proposed claim. The notice of motion and notice of intention state that on either August 29 or 30, 2004, claimant fell into a hole while playing soccer and twisted his knee. Claimant was treated at the facility hospital and given ice and bed rest. The next day, he was again given ice and bed rest. Two months later, claimant received an MRI and was seen by a specialist, who diagnosed him with torn ligaments and ordered surgery. Claimant underwent surgery on March 30, 2005. Thereafter, claimant moved for the instant relief.

In determining whether an application for permission to file a late claim should be granted, the Court must determine whether the claim would be timely under the applicable Statute of Limitations and then consider certain statutory factors. These factors are whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious (Court of Claims Act § 10 [6]). The last factor is the most decisive factor inasmuch as it is futile to proceed with a meritless claim.

Although there is no dispute that the limitations period on this claim for negligence and medical malpractice claim has not expired (CPLR 214; 214-a), claimant fails to address any of the statutory factors in his application. Although claimant does not have another available remedy, the Court determines that late claim relief is not warranted. Claimant fails to offer any excuse for his failure to timely file a claim. Next, the intertwined issues of notice, opportunity to investigate and prejudice are considered together. Claimant's submissions fail to state that prison personnel were aware of claimant's accident on the soccer field, and he fails to provide any incident reports or medical records. Thus, claimant has failed to demonstrate that defendant received timely notice of the essential elements of the claim, and was afforded an opportunity to investigate the circumstances underlying the incident. The Court finds that defendant would be particularly prejudiced with respect to the negligence claim, which would require defendant to investigate a field condition that existed in August 2004. Even if the Court determined, however, that defendant would not be prejudiced in the alleged medical malpractice, claimant fails to establish his claim has the appearance of merit.

It is well settled that despite the State's obligation "to take every reasonable precaution to protect those who are in its institutions" ( Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]), claimant must allege that defendant either created a dangerous condition or had notice of the condition (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]). Here, there is no indication that defendant knew or caused the condition that led to claimant's injury. With respect to the medical malpractice claim, claimant fails to submit an medical affidavit or other documentation that claimant's treatment deviated from acceptable medical practice (see Perez v State of New York, 293 AD2d 918 [3d Dept 2002). Thus, without more, claimant's allegations do not have the appearance of merit. As such, after balancing the relevant factors, the Court determines that late claim relief is not warranted.

Accordingly, claimant's motion M-71128 is denied.

May 5, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1."Motion for Permission to File A Late Claim" filed December 21, 2005; unnumbered papers annexed;

2. Affidavit of Michael C. Rizzo sworn to January 5, 2006.

[1].There is no allegation that claimant timely served defendant with a notice of intention.